By Patricia M. Lucas and Alex Ricciardulli, Los Angeles
Media and public representations of the judicial system are heavily weighted to trials, with their "Perry Mason moments" and emotional closing arguments. In the real legal world, however, few cases ever make it before a jury; most cases are settled based on unglamorous hard work pretrial.
In civil litigation in particular, the real heavy lifting is done in the discovery process. Mastering the basic rules of discovery is essential to successful civil practice and indispensable to a bench officer's administration of a civil courtroom. The objective of this article and accompanying self-assessment test is to provide practitioners and bench officers with the fundamental rules regarding California civil discovery. By reading the article and taking the test, readers will learn the purposes and basic rules of discovery, the two most common discovery methods - obtaining documents and taking depositions - procedures for precluding or limiting discovery through protective orders, and the enforcement of discovery through sanctions.
Purposes and Basic Rules of Discovery
There are several purposes to allowing civil litigants to exchange information before trial. Discovery allows parties to prepare for trial: to avoid trial by ambush, with surprise witnesses and documents the other side has never seen. With information exchanged in advance, the parties can focus the trial on the issues truly in dispute, creating efficiency for judge and jury. Discovery also facilitates potentially dispositive pretrial motions, such as summary judgment. Possibly most important, discovery promotes settlement. When parties exchange evidence they would use at trial, each learns about the other's case and gains insight into the likely result at trial.
The pretrial exchange of information in California civil cases is governed by the Civil Discovery Act, Code of Civil Procedure Section 2017.010, et seq. (All references are to the Code of Civil Procedure unless otherwise stated.) A succinct summary of discovery in this state is set forth in the opening section of the act: "Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property."
Admissibility is not the test for purposes of discovery. Davies v. Superior Court, 36 Cal.3d 291 (1984). Rather, material falls within the broad definition of "relevant to the subject matter" under Section 2017.010, and is thus discoverable, "if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement." People v. Gonzalez, 33 Cal.App.4th 1539 (1995). The rules are to be applied liberally in favor of granting discovery; even "fishing expeditions" are allowed. Greyhound Corp. v. Superior Court, 56 Cal.2d 355 (1951).
Nonetheless, there are limits to discovery. The court may curtail the scope of discovery "if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence." Section 2017.020(a).
Obtaining Documents: Sections 2031, 1985 et seq.
In most civil cases, documents are the most important thing. Documents do not lie, shade the truth or fail to recall. Documents reveal what the parties were doing and thinking before they became motivated to conform their words and conduct to the legal theories presented in the case.
Although other forms of written discovery, such as interrogatories and requests for admission, may be directed only at parties to the lawsuit, a party may obtain documents not only from other parties but also from individuals and entities who are not parties. Section 2031.010(b). Under Section 2031.010(a), parties may be compelled to allow inspection and production of documents, as well as "tangible things, and land or other property." The statute also requires parties to provide a sworn statement that they have produced all documents requested, or an explanation if they cannot produce a requested document, or an objection if they choose not to produce a document they have. Section 2031.210(a). If an objection is made, the responding party must identify the document withheld and the basis for the objection, both with sufficient particularity that the requesting party has enough information to test the validity of the objection. Section 2031.240.
Nonparties may be required to produce documents if served with a subpoena under Section 1985 et seq. If a subpoena requests the production of "personal records" as defined in Section 1985.3 (including financial and medical records), the subpoenaing party is required to give notice to the person whose records are requested. Special rules apply if the records requested are employment records. Section 1985.6.
Depositions: Section 2025
Depositions allow a party to ask questions and to obtain oral answers under oath in a face-to-face setting. A deposition is an invaluable tool because the real-time nature of the questioning limits a witness's ability to fabricate and gives the questioner an opportunity to observe the witness's demeanor and to follow up immediately on the answer. However, depositions are also the most expensive discovery mechanism, particularly if the questioning party elects to record the deposition by videotape as well as by the traditional shorthand reporting. A day of deposition testimony, including fees for attorney, shorthand reporter and videographer, as well as transcript preparation, easily can cost several thousand dollars.
The deponent, the person answering questions, may be any party or a nonparty, whether an individual or an entity. When the deponent is an entity, such as a corporation or some business, the party seeking the deposition must describe the particular subjects on which the entity must testify. Then the entity must designate the "person most knowledgeable" and ensure that that person is educated on all topics for which he or she is designated. Section 2025.230.
A party or an officer, director, managing agent or employee of a party can be compelled to attend a deposition simply by service on the party or attorney, by mail or otherwise, of a notice of deposition. Section 2025.280(a). To compel the attendance of a nonparty witness, the party seeking the deposition must serve the witness personally with a deposition subpoena. Section 2025.280(b).
Objections to the relevancy, materiality or admissibility of answers at a deposition are not waived for trial by failure to raise them during the deposition and are therefore not necessary. Section 2025.460(c). As a practical matter, this means that there is rarely a good-faith reason to make objections of this type at a deposition, and on a motion for a protective order or for sanctions, the court considers whether repeated objections of this type are an abuse of discovery.
However, objections to the form of the question or answer are waived if not made at the deposition. Section 2025.460(b). Accordingly, objections as to form should be asserted on the record, but then the deponent should be allowed to answer. A third category of objections are those based on privilege (including attorney-client, work-product, privacy and trade-secret). An objection be made at the deposition and will be waived if not made; also, the deponent should be instructed not to answer the question. Section 2025.460(a)(b). Otherwise, the privilege or protection may be lost. However, an instruction not to answer ought not to be given lightly; counsel should be very confident that the objection will be sustained if the issue is brought before a judge, because one party or the other likely will be sanctioned in that circumstance.
Absent a court order, only one deposition is allowed of any natural person. Section 2025.610(a). This rule has two major exceptions: (1) a person who has been deposed once as the company's designee may be deposed again in his or her individual capacity (Section 2025.610(c)(1)); and (2) when a witness is instructed not to answer a question, the deposing party can continue asking questions on other issues and then, after successfully moving to compel answers, may depose the party again on the questions on which the instruction was given. Section 2025.460(d).
Protective Orders: Section 2017.020
Parties can preclude, limit or control and condition discovery if it is unduly burdensome, expensive or intrusive, by obtaining a protective order.
Concerning depositions and document requests directed to parties, a court is allowed to "make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." Sections 2025.420(b), 2031.060(b). When a subpoena requires a witness to attend a deposition or produce documents, that witness or any party, or any consumer whose records are subject to the subpoena, may move to quash the subpoena in its entirety or to modify its terms. Section 1987.1, 1985.3.
Before a party may move for a protective order (or most other types of discovery orders), a party or attorney must "meet and confer:" that is, must "confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery." Section 2023.010(i). The request for a protective order must include a declaration stating "facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion." Section 2016.040. The court carefully reviewa the motion papers to ensure that this requirement has been met.
The party seeking the protective order based on discovery being overly burdensome, expensive or intrusive has the burden of proof to show good cause for the order. State Dept. of Health Services v. Superior Court, 104 Cal.App.3d 80 (1980). Grounds for issuing a protective order include that discovery would be unreasonably burdensome or expensive or tread on privileged communications or documents. Respecting the right to privacy in the California Constitution (Article 1, Section 1) is also a valid ground. This right covers matters such as personal finances (Valley Bank of Nevada v. Superior Court, 15 Cal.3d 652 (1975), employee personnel files (Eldorado Savings & Loan Assn. v. Superior Court, 190 Cal.App.3d 342 (1987), medical records (Heda v. Superior Court, 225 Cal.App.3d 525 (1990), and sexual relations (Britt v. Superior Court, 20 Cal.3d 844 (1978)). For matters coming within the right to privacy, a court must grant a protective order unless disclosure is found to further a "compelling" state purpose and that the purpose could not be achieved through less intrusive means. Britt.
The Legislature intended to send a strong message when it designed the Discovery Act so that the imposition of monetary sanctions (requiring one side to pay the other side's attorney fees and costs) is the rule, not the exception. According to the language set forth multiple times throughout the Discovery Act, when a discovery motion is made, the loser pays: The court "shall impose a monetary sanction ... unless." Sections 2017.020(b), 2019.030(c). To warrant not imposing sanctions, the court must find either "that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."
The court may impose sanctions for any misuse of the discovery process, including persisting in making objections without substantial justification, using a discovery method in order to cause unwarranted annoyance, embarrassment or oppression, making evasive responses to questions, and failing to "meet and confer" before seeking court intervention in discovery disputes. Section 2023.010.
The imposition of monetary sanctions is almost always the first tool the court uses to address discovery abuse. A court must use the least severe sanction that would accomplish the court's purpose. Rail Services of America v. State Compensation Insurance Fund, 110 Cal.App.4th 323 (2003). The goal of sanctions in the discovery context is not to punish but rather to do what it takes for a party to obtain discovery. Midwife v. Bernal, 203 Cal.App.3d 57 (1988).
An interesting but seldom-used rule allows the court to impose a monetary sanction of up to $1,500 payable to the county for disobeying any lawful court order "without good cause or substantial justification." Section 177.5.
If the court has imposed monetary sanctions and the offending party again abuses discovery, the court may consider imposing "evidence sanctions" (barring a party from introducing evidence at trial) or "issue sanctions" (deeming facts established adverse to the offending party). The court also can cite a party for contempt of court and even impose "terminating sanctions": that is, dismiss the plaintiff's case with prejudice or strike the defendant's answer and enter a default. Section 2023.030(a)-(e).
Because of the technical nature of the rules and the potentially disastrous consequences, litigants must navigate the waters of discovery with great care. Bench officers too must patrol these seas with caution, ensuring that the flow of information between parties is maximized yet respecting litigants' rights to privacy and to not be overburdened by the process.
Patricia M. Lucas is a judge on the Santa Clara County Superior Court, and Alex Ricciardulli is a judge on the Los Angeles County Superior Court.
NEW MCLE AND JUDICIAL EDUCATION SERIES
Continuing legal education for both lawyers and judicial bench officers is essential to effective practice and court administration. Starting today, the Daily Journal will run a monthly series of self-study articles and tests providing lawyers with MCLE credit and judges and commissioners with continuing legal education.
The series will feature timely articles written by California’s leading judges, commissioners, attorneys and law school faculty.
Los Angeles County Superior Court Judge Alex Ricciardulli will work with the authors and draft the self-study tests accompanying the articles. Neither Judge Ricciardulli nor the authors receive any compensation.
Earn one hour of MCLE credit by reading the article and answering the questions that follow. Mail your answers with a check for $28 to the address on the answer form. You will receive the correct answers with explanations and an MCLE certificate within six weeks. Price subject to change without notice. CERTIFICATION: This self-study activity has been approved by the State Bar of California toward Minimum Continuing Legal Education Credit in the amount of one hour of general credit.
Bench officers can receive credit toward the educational provisions in California Rule of Court 10.462 by taking and self-grading their tests online at the California Administrative Office of the Courts Web site for bench officers only: Serranus. (Bench officers only can apply for an account at http://serranus.courtinfo.ca.gov and select “Apply for an Account Link.”) The articles and tests are designed to meet the approved criteria for judicial self-study: (A) the education is relevant to bench officers’ work; (B) it is one hour long; and (C) anticipated learning outcomes are pre-identified. Rule 10.471(b)(1). The education also meets criteria (B) and (E) in Rule 10.471(b)(2): (B) the participant receives written materials (the article); and (D) an assessment tool is used (the taking and self-grading of the test).
The articles and tests are not pre-approved by the Judicial Council, the AOC or CJER. Bench officers should check with their local presiding judges to ensure that the activity can be used toward satisfying Rule 10.462 legal education provisions.